Tuesday, March 30, 2010

Whenever we go to government departments - we find that the civil servants do not represent the peoples of Malaysia. Many departments also seem not to have Malaysian Chinese and Malaysian Indians - let alone Malaysian orang asli.

The 8,372-strong [Johor] state civil service has only 10 Chinese and 116 Indians, an assemblyman pointed out.

I wonder about the State civil service, and Local Council staff in the Pakatan Rakyat States of Selangor, Penang, Kedah and Kelantan.

Language is still an issue especially with the elderly - and it would be good to have people in the various departments/offices of civil service that can speak the Chinese/Indian languages.

Maybe the non-Malays are not interested. If so, why?

* There is a perception that even if you join the civil service, there is really not equal chances of promotions, etc. Promotions, it is believed, is not based on merits and capacity rather ethnicity, religion and more importantly one's 'connections' - be it political, etc..

* It is not that we are not interested - but we did not know of the vacancies, and procedures for application.

* The present composition of the civil service, i.e. almost 100% Malay is a put-off.

Najib talks about 1Malaysia - maybe it is time for changes in perception and policies to ensure that Malaysia's civil service is more reflective of Malaysia's people. I am not for quotas - so do not even consider setting ethnic quotas. Just start looking at Malaysians as Malaysians - not bothering at all with one's ethnicity, religion or gender.

JOHOR BARU: The 8,372-strong state civil service has only 10 Chinese and 116 Indians, an assemblyman pointed out.

Bentayan assemblyman Gwee Tong Hian said in terms of percentage, Indians and Chinese made up 1.39% and 0.12% respectively.

Gwee said the statistics were given to him in a written reply from Johor Mentri Besar Datuk Abdul Ghani Othman.

Gwee, who posted the reply on his blog, had asked the Mentri Besar at the state assembly sitting on the percentage of non-Malays in the state civil service and the measures to recruit more non-Malays.

Abdul Ghani revealed that in 2007, only five Indians applied for jobs in the civil service, with only two being short-listed and appointed.

There were no Chinese applicants that year.

In 2008, there were seven Indian applicants. Only four were appointed. As for Chinese applicants, only five applied, two were short-listed and appointed.

Abdul Ghani said the Johor Public Services Commission had received many applications that were now in the vetting and interview stages.

He said the commission had also taken initiatives to encourage non-Malays to join the civil service with programmes initiated by the state’s Economic Planning Unit and Jobstreet.com.

The commission was also taking steps to advertise vacancies in vernacular newspapers.

Gwee, when contacted, said he was shocked over the reply, adding that the numbers did not reflect the Prime Minister’s 1Malaysia concept.

For the police, Immigration, Labour Departments, Industrial Relations Department, hospitals, there also must be staff that can speak the language of the migrant workers in Malaysia - Burmese, Nepali, Bangladesh, Pakistan, Vietnam, ... - if not it is very difficult for the purpose of communication. How can they complain? How can they respond? ...and it is absurd to expect them to be fluent in Bahasa Malaysia, English, Chinese or Tamil. [Maybe, there should be a translator pool in every town, who could serve the various departments.

Well, we have a by-election - and it saddens me that PKR is saying that it is a PKR seat, and hence it will be fielding a P"KR candidate. It is so BN... [Remember, that these were all PAS, DAP, PRM seats before PKR came into being...]

I believe that the best candidate must be fielded - not a PKR candidate...maybe not even a Pakatan Rakyat (PKR-DAP-PAS) candidate. It could be a PSM candidate...maybe even a PRM candidate...or even a Human Rights Party candidate ...or just some other person from the civil society or the communitywho has a proven 'history' of fighting for human rights and justice...

We want the best candidate - and the Opposition must be open (and not be seen taking a 'protecting my turf/seat' position).

Maybe, we should be placing an Orang Asli candidate - for after all, there is no Orang Asli MP.

Maybe a social activist, who have been working for the community - the people for years and years.

What are the other things that one look at? Ethnic composition of the constituents. Some PKR person in 2008 told me that Temerloh had a Malay majority - so they had to field a Malay candidate. I was so disappointed with that 'answer', because this was PKR (that multi-ethnic multi-religious party - that is blind to skin colour) - for there really is no place where the majority are from the other than Malay ethnic groups - thanks to the way the UMNO-led BN has divided the Parliamentary Constituencies..

Find the best person - someone with an history of working for rights, justice and peace...

PKR candidate - I am worried as many PKR elected reps have jumped ship - maybe, it should be some other person.

Sometime - what they want is a PKR 'yes person' or Pakatan Rakyat 'yes person' - some person who will not challenge the current party leadership and will be subservient. Many of the Pakatan Rakyat MPs/ADUNs seem to just 'disappear' - just not there taking up or fighting for any issues or causes. We want MPs/ADUNs that are strong...and would be out there championing issues and causes (best if it is someone who has a 20 plus year history of doing this...)

Now, they want a Dr Halili Rahmat - I googled his name - and found out that he isDato' Dr.Halili Bin Rahmat, MBBS (Mal) FRACS (Neurosurgery) - in Sime Darby's Subang Jaya Medical Centre. Well, a doctor for the rich... and will he really have time to attend Parliament and serve his constituents. Background: - Is he from UMNO - those that followed Anwar out into PKR? Has he got a history of being involved in issues affecting the poor...the ordinary people. I have not heard of him before this...and could not find any blog of his - which would have been good to see what he is about - his views, etc ...Wonder also about his 'Dato-ship' - when did he get it. Was it on recommendation of the UMNO-led BN? [I really do not know Halili - and I hope that those who do will tell me[and the readers] more about this doctor.He may be a good person with a long history of standing up and fighting for rights...]

I believe that we should find a people's person to be the MP - someone who have been involved in issues or rights and justice for a long time - not some Dato...Dr.. 'professional' - maybe we need an ordinary person..

As I said, let us not be trapped in party-self centredness - PKR seat ....so we need a PKR member. If that be the case, then the door is closed for all who are not PKR, DAP, PAS...members. DAP has in the past picked 'non-members' to stand under the DAP ticket - Pick the best person to be the MP...

A noted neurosurgeon, Dr Halili Rahmat, is fast emerging as PKR's choice as candidate for the upcoming by-election in Hulu Selangor.

Born in Ulu Yam, he is known to be a close associate of PKR de facto leader Anwar Ibrahim.

Halili (right) is currently the PKR Hulu Selangor division treasurer.

He has had had two outings on the hustings, but with no success.

In 1999, he contested the Hulu Selangor parliamentary seat, but lost to MIC deputy president G Palanivel.

In 2004, he stood for the Batang Kali state seat, but lost to Umno's Zainal Abidin Sakom by 8,828 votes.

However while Halili's professional credentials are respectable enough, PKR's Hulu Selangor division is also considering its vice-chief Razali Mokhtar as a candidate also.

Razali, born in Batang Kali, is an engineer in his 40s. He was the former general manager of Bumi Highway.

When contacted, a senior leader said the two names - and one more yet to be decided - will be submitted to the top leadership within two days.

The party is expected to discuss the candidacy at Wednesday's political bureau meeting.

It had been earlier speculated that the candidate could likely be national-level leaders such as Youth chief Shamsul Iskandar Mohd Akin, Selangor PKR deputy chief Syed Shahir Syed Mohamud, who is also MTUC president and Pakatan Rakyat coordinator Zaid Ibrahim.

Choice of candidate

Several top party leaders refused to speculate about the various named being floated.

PKR vice-president R Sivarasa (below) reiterated the party stance that the candidate selected will be the one with the best chance of winning.

"The party will take into account various factors including his/her background, experience and qualifications; the demography of the voters; the particular characteristics of the constituency; views of coalition partners; and all other relevant factors.

"No one of these factors by itself determines who the candidate should be," he said when contacted.

The Hulu Selangor seat was made vacant due to the death of PKR's Zainal Abidin Ahmad, 71. He succumbed to brain cancer on March 25.

Thursday, March 25, 2010

In a democracy there are three independent branches of government - the Executive, the Legislative and the Judiciary.

But in a parliamentary system like what we have in Malaysia, where the executive, which consists the prime minister and cabinet ("government"), is drawn from the legislature parliament, the required 'independence' of the Legislative and the Executive may have been lessened.

Eventhough the legislative and executive branches are connected in parliamentary systems, there must be an independent judiciary.It is to the courts that the person runs to seek justice in disputes between the 'government' and the person, and they expect justice. But alas, Malaysia's judiciary seem to becoming more and more seen to be pro-government. The recent overturning of the decision of the High Court by the Court of Appeal in the case of Malek Hussein, where the High Court had this to say... (I have posted the full High Court judgment at the end of this posting...an interesting read)

[56] In the present case, the behavior of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, and prolonged physical and mental ill-treatment. The Special Branch Department of the Police Force must not only be neutral but must also be seen to be neutral and non partisan. It must be above politics. The practice of torture of any kind is to be detested. The despicable conduct of the then Inspector General of Police, Tan Sri Rahim Noor, was shameful and a disgrace. He had shown an extremely bad example to the thousands of men under his charge. The award of exemplary damages is necessary to show the abhorrence of the Court of the gross abuse of an awesome power under the Internal Security Act. Any gross abuse of this power (which clearly is the case here), therefore, must be visited with an award of exemplary damages to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely. The practice of torturing detainees by the Police Force can never and should never be condoned by the courts. The court must show its utmost disapproval in no uncertain terms.

[57] Finally, access to a lawyer is one of the fundamental safeguards that a person has under the Federal Constitution that ensures he is not kept in incommunicado detention and abused. Access to a lawyer ensures that the treatment of the detainee has some transparency and that he is accorded due process as stipulated by the Constitution and the law. Denial of access to counsel allows detaining authorities that act mala fide to do as they wish with a detainee including placing obstacles to legal recourse. In many instances when access to counsel is finally accorded to the detainee, it is usually too late for him to take meaningful legal recourse as the evidence has disappeared or, more importantly, the mischief or injury that the access was supposed to prevent ie, physical and mental ill-treatment etc. has already happened.

[58] In my judgment, in the circumstances of the present case, an award of RM1 million as exemplary damages, is appropriate.

[59] I am awarding interest at the rate of 8 percent per annum on all the above sums to run from the date of judgment until realization; and I order that all costs of these proceedings be paid by the defendants to the plaintiff.

The Court of Appeal has today overturned a rare RM2.5 million award to former Internal Security Act detainee Abdul Malek Hussein following an appeal from the government.

Justice Md Raus Shariff leading a panel of three judges reversed the High Court decision and ruled that Abdul Malek's detention was lawful and rejected his allegations of torture while in custody.

The other two judges who sat with Md Raus - who is now Federal Court judge - were justices Sulong Matjeraie and Ahmad Maarop.

Following the decision, Abdul Malek is not entitled to get any monetary award but was instead ordered by the appellate court to pay RM50,000 in costs.

In an immediate reaction, Abdul Malek said he planned to go to the Federal Court to appeal against today's decision.

His lawyer, Sivarasa Rasiah, said the reversal has set the country backwards at a time when the government was in the midst of amending the draconian law, which allows for detention without trial.

Abdul Malek, who is now parliamentary affairs coordinator for the opposition leader, said he was unperturbed by the Court of Appeal's decision.

"The assaults did take place but the appellate court simply rejected the High Court findings."

Black day for rights movementSuaram spokesperson E Nalini also described today's decision as a black day for the human rights movement, which has campaign for the repeal of the Act.

In 2007, then Kuala Lumpur High Court judge Mohd Hishamudin Mohd Yunus, in a landmark decision ruled that Abdul Malek's detention during the reformasi demonstrations in 1998, were made in bad faith under Article 5 of the Federal Constitution.

In ruling the arrest unlawful and affirming there indeed was assault while in custody, Hishamudin, who is now a Court of Appeal judge, also said the nature of Abdul Malek's interrogation was clearly for a political purpose and had nothing to do with genuine concern for national security.

Abdul Malek, was arrested under the ISA on the night of Sept 25, 1998, after addressing a demonstration earlier that day in Masjid Negara following the sacking and arrest of Anwar Ibrahim, who was then deputy prime minister.

He was detained under the preventive security law for 57 days, and was later released without being charged.

Abdul Malek filed his suit civil suit in March 1999, naming special branch officer Borhan Daud, the then police chief Abdul Rahim Noor and the government as respondents.

During the High Court trial, the plaintiff testified he was stripped naked in an air-conditioned room, blindfolded during interrogation, and physically assaulted up to 60 times, beaten until he was unconscious, forced to drink urine and subjected to sexual abuse.

He also told the court he saw Rahim punching him in his chin in the interrogation room when his blindfold accidentally dropped.

Former IGP ticked off

On the assault and battery claims, Hishamudin said he was convinced that it took place after major contradictions were found in the defendants' witnesses compared to Abdul Malek's “consistent statements”.

He also opined that the public prosecutor's refusal to prosecute Abdul Malek for making false claims against Rahim implied that there was some truth in his claims.

The High court also ruled that it was unconstitutional for Abdul Malek to be denied access to his lawyer.

When making his decision on the award of exemplary damages, Hishamudin made strong statements about Rahim's conduct as inspector-general of police in dealing with Abdul Malek's case.

“The despicable conduct of the then IGP Rahim Noor was shameful and a disgrace that shows a bad example to the department of men under his charge.

“The award of exemplary damages for the plaintiff is to show the abhorrence of the courts against the gross abuse of power by the police and the use of the ISA,” he asserted.

[1] In the present case, the plaintiff is claiming against the defendants for damages for the tort of false imprisonment as well as for the tort of assault and battery.

[2] At the material time the plaintiff was employed in various capacities in a number of companies. The first Defendant at the material time was a police officer with the rank of Assistant Superintendent of Police attached to the Special Branch Department, Police Headquarters (IPK), Kuala Lumpur. The second Defendant is the Inspector-General of Police. The claim against the third defendant, that is the Federal Government, is for vicarious liability in respect of the torts of the first and second defendants.

[3] Briefly, the plaintiff alleges that he was unlawfully arrested without a warrant of arrest by a group of Special Branch officers led by the first Defendant at about 10 o'clock at night on 25 September 1998. The arrest occurred in front of his house, as he was returning home and after he had just alighted from a car driven by a friend. He was not clearly told by the first Defendant of the reason for the arrest. He was only vaguely told that he was arrested under the Internal Security Act. The plaintiff alleges that at the time of arrest he was handcuffed and given a hard slap thrice by the first Defendant when he was unable to show the first Defendant the location of his car. After the arrest, the first Defendant and his men entered the plaintiff's house without a search warrant and seized several documents and items. He was then blindfolded and taken to the Ibupejabat Polis Kontinjen ('the IPK'), Kuala Lumpur, where in a room at the first floor he was stripped naked, humiliated, and subjected to prolonged mental and physical torture by the first Defendant together with the then Inspector-General of Police, Tan Sri Rahim Noor, and several other police personnel. The ordeal lasted until 4 in the morning. He was denied medical treatment for several days. Only on 29 September that he was taken to see a doctor, Dr. Vasantha (SD7).

[4] It is the allegation of the plaintiff that he was taken to Bukit Aman the following day after the arrest (26 September 1998) and at Bukit Aman he was interrogated for 19 days. All in all he was in police custody for 57 days until his release on 21 November 1998.

[5] While in police custody he was denied access to counsel. He was also denied access to his family members. His family was allowed to see him only after he was kept in custody for 27 days, and throughout the entire 57 days under detention his family was allowed to see him only twice. Throughout these 57 days of detention he was kept under solitary confinement and, as said earlier, was interrogated for 19 days - interrogated not on matters affecting the security of the country but on political matters.

A. Whether The Arrest And Detention Of The Plaintiff Were Lawful

[6] As I have ruled in Abdul Ghani Haroon v. Ketua Polis Negara & Another Application (No: 3) [2001] 2 CLJ 709, the cardinal principle is that every detention is, prima facie, unlawful and the burden of proof is on the detaining authority to justify the detention (see also R. v Home Secretary, ex parte Khawaja [1983] 2 WLR 321).

[7] In my judgment, the arrest and detention of the plaintiff was unlawful for the following reasons:

(a) The plaintiff was never properly informed by the first Defendant of the grounds of his arrest as required under art. 5(3) of the Federal Constitution.

(b) The first Defendant failed to satisfy the court with sufficient particulars and material evidence of the plaintiff's activities to justify the arrest and detention of the plaintiff under s. 73(1) of the Internal Security Act 1960.('the ISA').

(c) The arrest and detention of the plaintiff were mala fide.

[8] Article 5 of the Federal Constitution states:

5. Liberty of the person
(1) No person shall be deprived of his personal liberty save in accordance with the law.
...
(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

[9] Section 73(1) of the ISA reads:

73. Power to detain suspected persons
(1) Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe:

(a) that there are grounds which would justify his detention under section 8; and
(b) that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.

[10] It is to be observed that the above provision makes reference to s. 8 of the ISA. Section 8(1) provides:

8. Power to order detention or restriction of persons
(1) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof, he may make an order (hereinafter referred to as a detention order) directing that that person be detained for any period not exceeding two years.

The Plaintiff Was Not Informed Of His Grounds Of Arrest

[11] In respect of an arrest under the ISA, the legal and constitutional duty on the part of the arresting authority, as imposed by art. 5(3) of the Federal Constitution, is to inform the person arrested of the grounds of his arrest. This duty must be discharged in a manner that makes the said constitutional protection meaningful. This means that the detainee must be told briefly and in clear and simple language that he is being arrested because there is reason to believe that his activities (the gist of which should be intimated to the detainee) have been such as to justify his detention in order to prevent him from acting in a manner prejudicial to the security of the country (in the context of the present case, and for the sake of simplicity, I do not propose to touch on the other two alternative limbs as provided for under s. 8 of the ISA). This, however, would only satisfy limb (a) of s. 73(1). In addition, in order to also satisfy limb (b) of s. 73(1), the detainee must also be told that there is reason to believe that he has acted or is about to act or is likely to act in a manner prejudicial to the security of the country. Here too, the detainee must be given, albeit, in a brief form, some idea in substance (that is to say, some essential particulars) in what way he has acted or is about to act or is likely to act in the manner alleged to be prejudicial to the security of Malaysia. It is my view that, in order to satisfy these two limbs/grounds, it does not suffice to merely parrot the provisions of s. 8 or s. 73(1) (b) without some indication to the detainee of the substance of what he has done or of what he is about to do or of what he is likely to do. At this point, no detailed particulars need to be informed to the detainee but at least he will know in essence the reason he is being arrested. In this regard, I refer to my decision in the case of Abdul Ghani Haroon v. Ketua Polis Negara (No. 3) [2001] 2 CLJ 709.

[12] In the present case, the plaintiff's evidence is that all he was told at the point of arrest (and even then he was told only after he asked) was that he was being arrested under the ISA. The first defendant, however, says as follows:

[14] Even assuming for the moment that I were to accept the first defendant's version, still, for the reasons that I have stated above, this cannot be sufficient compliance with the stipulation of art. 5(3) of the Constitution read together with s. 73(1) of the ISA. His words do not convey to the plaintiff the essence of what the plaintiff is alleged to have done that his detention is necessary to prevent him from acting in a manner prejudicial to the security of Malaysia.

[15] The first Defendant also relies on the form at p. 1 of Bundle B as compliance by the arresting office of the need to inform the grounds of arrest under art. 5(3). The form merely states:

[16] It is my judgment that, in the light of what I have said above, this form cannot be taken to be due compliance with art. 5(3). In relation to compliance under s. 73(1)(a), the form completely fails to meet the requirement as it mechanically parrots the words of the provision of s. 73(1)(a) without showing that the arresting officer had directed his mind to the requirements of s. 8. I had pointed out this requirement in Abdul Ghani Haroon (No. 3). The form also fails in terms of the s. 73(1)(b) requirement, since the plaintiff was not given the slightest clue or intimation as to what he had allegedly done or was likely to do or was about to do that was prejudicial to the security of the country.

[17] Since the plaintiff was never duly informed of the grounds of his arrest, as he was entitled to under art. 5(3) of the Constitution, it follows that the arrest was unlawful.

[18] In dealing with art. 5(3) of the Constitution, I am mindful of the fact that I am presently dealing with the fundamental liberty of the citizens. The preservation of the personal liberty of the individual is a sacred universal value of all civilized nations and is enshrined in the Universal Declaration of Human Rights and Fundamental Freedoms of 1948. Article 5(3) of the Federal Constitution guarantees every person in this country of his personal liberty and protection from arbitrary arrest particularly arbitrary arrest by the State. As I have said in Abdul Ghani Haroon (No: 3), and I will say it again now, judges are protectors of the fundamental liberties of the citizens and that this is a sacred duty or trust which judges must constantly uphold.

The first Defendant Failed To Satisfy The Court With Sufficient Particulars And Material Evidence

[19] In Abdul Ghani Haroon (No. 3), I had ruled that:

the arresting officer must, in his affidavit, furnish, not necessarily detailed particulars, but some reasonable amount of particulars, not only for the purpose of satisfying the court that he has some basis for the arrest but also to be fair to the detainee - to enable the detainee, who believes that he is innocent, to defend himself.

[20] This approach has since been endorsed by the Federal Court in Mohamad Ezam bin Mohd Noor [2002] 4 CLJ 309. In Mohamad Ezam bin Mohd Noor the Federal Court declared the correct law as requiring an objective test.

[21] In the present case, the first defendant, therefore, has to provide sufficient material evidence and particulars to show the basis of his reason to believe that the detention of the plaintiff was necessary to prevent him from acting in a manner prejudicial to the security of Malaysia (the s. 73(1)(a) limb) and also to show the basis of his reason to believe that the plaintiff had acted (or was likely to act or was about to act) in a manner prejudicial to the security of the country (the s. 73(1)(b) limb).

[22] In the present case, however, this was not done. Instead, all the first Defendant could say in his evidence was the bare assertion that:

[23] No material particulars or evidence was ever produced to the Court to substantiate the above assertion. The dates and places of the alleged "unlawful assemblies" were never stated by the first defendant. It was never even shown by the first Defendant that the so-called "unlawful assemblies" were actually unlawful in the first place. It was never shown by the first Defendant that each and every one of the "unlawful assemblies" ended up with rioting and public disorder as he alleged. No specifics were ever given as to how the plaintiff was "terlibat secara langsung" in those assemblies or, if even he was, in what manner. I am not suggesting of proof beyond reasonable doubt but of the existence of material evidence and particulars to support a reasonable belief. Hence, the allegation by the first Defendant was a bare assertion without particulars.

[24] The plaintiff, on the other hand, furnishes unchallenged evidence that at no time during his interrogation in Bukit Aman were any specific questions put to him that he was connected to any violent act of any kind or planning any specific violent act. He gives detailed and unchallenged evidence of the content of the interrogations he endured for 19 days at Bukit Aman. In summary, it was about his relationship with Datuk Seri Anwar Ibrahim, the plaintiff's role in the reformasi movement, meetings between Nurul Izzah, Dr. Wan Azizah and Keadilan leaders with foreign political leaders, allegations about Datuk Seri Anwar Ibrahim's sexual activities and the plaintiff's relationship with the opposition party, PAS, and Dato' Fadzil Noor, and his views on the ISA. He was told by his interrogators not to file a habeas corpus application. The nature of the interrogation shows clearly its political nature and that it was being done for collateral purposes ie, intelligence gathering for political purposes and nothing to do with genuine concern for national security. This further reinforces the plaintiff's contention that the first Defendant never had a basis at the material time of the arrest (or, for that matter, at any time thereafter) for a reasonable belief under s. 73(1). In other words, the arrest was from the very beginning mala fide.

Whether The Detention Of The Plaintiff Was Extended Lawfully

[25] In the light of what I have said above, it therefore follows that the arrest and detention of the plaintiff for 57 days was unlawful from the outset and that the plaintiff is entitled to the declaration prayed for in para. 14(a) of the statement of claim and to damages. The question of whether the detention of the plaintiff was extended lawfully as provided for under s. 73(3), therefore, does not arise and would be quite academic. However, for the sake of completeness, I shall in this judgment, nevertheless, deal with the issue.

[26] In my judgment, the extensions of the detention of the plaintiff which were required after the first 24 hours of detention were not done in compliance with s. 73(3) for the following reasons. Section 73 (3) stipulates:

(3) Any person arrested under this section may be detained for a period not exceeding sixty days without an order of detention having been made in respect of him under section 8:

Provided that:

(a) he shall not be detained for more than twenty-four hours except with the authority of a police officer of or above the rank of Inspector;
(b) he shall not be detained for more than forty-eight hours except with the authority of a police officer of or above the rank of Assistant Superintendent; and
(c) he shall not be detained for more than thirty days unless a police officer of or above the rank of Deputy Superintendent has reported the circumstances of the arrest and detention to the Inspector-General or to a police officer designated by the Inspector-General in that behalf, who shall forthwith report the same to the Minister.

[27] I had dealt with the law on this issue extensively in Abdul Ghani Haroon (No: 3). There I held that the officer extending the detention had to be objective, independent minded and professional and to make his own judgment without fear or favour. He should exercise his own discretion without being directed or influenced by his superiors to extend the detention. He should also justify the extension by describing the purpose of the pending inquiries which must relate to the "reason to believe" under s. 73(1). He should also explain plausibly - although not with a detailed minute by minute account - why the investigation could not be completed within 24 hours, or within 48 hours, or within 30 days, as the case may be. I had in that case opined that the purpose of s. 73(3)(a), (b) and (c) was to provide built-in departmental safeguards and that the court must, and indeed, has the power to evaluate the exercise of discretion in extending the detention.

[28] In the present case, the SB Forms 28A signed by the officers extending the plaintiff's detention beyond 24 hours and beyond 48 hours, respectively, are exhibited before the Court. The officers involved were ASP Koh Seok Keng (SD9) and ASP Cheong Ah Mooi (SD10), and both gave evidence before this court. It is my finding that both Forms 28A and the officers' evidence did not address the legal requirements of spelling out the purpose of the detention and relating it to the "reason to believe" with sufficient particulars. Neither did they explain plausibly why the extensions were needed. It is clear from the provisions of s. 73(3) that investigation is to be commenced immediately upon arrest and any extension beyond 24 hours, or beyond 48 hours, or beyond 30 days, as the case may be, has to be authorized by the appropriate officer, as stipulated by the provisions. The investigating team is not supposed to sit back and do nothing for 24 hours. It would, therefore, be incumbent for an officer authorizing the first extension to find out what investigation had been carried out in the first 24 hours and what else needed to be done. SD9, however, did nothing of that sort and is only able to say that investigations had not begun without being able to explain why.

[29] Similarly, SD10 is not able to inform the court as to what investigations had been done in the first 48 hours after the plaintiff's arrest, or to say what else needed to be done. She merely says that the investigation was in its early stages and could not be completed in a short period. She, however, also says that she did not receive or read or see any report in the file of any investigation that had been done so far with the plaintiff. She acknowledges that her role was to ensure that there was a basis to continue investigations which had not been completed. However, her own evidence fails to disclose the particulars for a basis to extend the detention beyond 48 hours and up to 28 days. Both SD9 and SD10 appear to have acted in an automatic and rubber-stamping fashion by merely signing the Forms 28A without applying their minds as to the necessity and purpose of the extension.

[30] The final extension was done by DSP Philip Savariappan (SD8) who during the trial did not reappear in court for re-examination after the conclusion of cross-examination. Exhibit D11 is a report to the Minister (SB Form 30) signed by SD8 in purported compliance with s. 73(3)(c) to authorize a further detention of the plaintiff of more than 30 days. Section 73(3)(c) of the ISA stipulates that this report to the Minister must be made either by the Inspector-General of Police (the IGP) himself or by an officer designated by the IGP. SD8 in evidence claimed that he forwarded the report to the Minister pursuant to a 'delegation of powers' under s. 73(3)(c). It is to be noted that paragraph (c) of subsection (3) does not provide for a delegation by the IGP of his functions: it merely provides for the designation of an officer by the IGP. However, be that as it may, no documentary evidence was ever produced to the court to show any instrument of 'delegation of powers' or that SD8 was the officer designated by the Inspector-General under s. 73(3)(c) to report to the Minister on the Inspector-General's behalf. In cross-examination when SD8 was asked as to the basis of the further detention, he was only able to say that he received a request from the Special Branch to extend the detention beyond 30 days and on that basis he signed and forwarded D11 to the Minister. His answers also show that he acted in an automatic and rubber-stamping fashion. He confirmed that he had never refused a request for extension. He was unable to explain as to why it was necessary to extend the detention when the plaintiff had asserted in his evidence that after the 19th day of detention interrogation ceased and he was left alone. What SD8 did in the present case was merely to send to the Minister the very report that was submitted to him by one DSP Sofian. There was no evaluation of DSP Sofian's report by him or by the IGP. In short, SD8 acted merely as a 'go-between' between DSP Sofian and the Minister. That is not the intention of subsection (3)(c) in respect of the role IGP or his designated officer.

B. Whether The Plaintiff Was Assaulted During His Detention

[31] On this issue, upon a careful evaluation of the entire evidence before me, it is my finding of facts that the plaintiff has succeeded in proving to the court on a balance of probabilities that he had been assaulted in the manner he alleges and by the individuals that he has named or identified.

[32] The plaintiff alleges that he was first assaulted by the first Defendant after the arresting team moved him from his home. He was arrested in front of his home after which a search of his home was done and various documents and a personal computer removed. He describes the assault in his evidence. He says he was slapped three times by the first Defendant after he was unable to take the first Defendant to the location of his (the plaintiff's) car. The plaintiff also said that he was blindfolded, and his head was forcibly covered with a T-shirt and forced to bend forward down between his legs in the car as he was taken to the IPK, Kuala Lumpur.

[33] The first Defendant denies these allegations. He only admits that he instructed L/Cpl Johari to place "cermin mata gelap" on the plaintiff, and that the purpose being "adalah bertujuan untuk menutup penglihatan plaintiff bagi mengelirukan plaintiff". The plaintiff then describes the circumstances of the second assault. In summary, he describes how in an air-conditioned room on the first floor of the IPK he was stripped naked, blindfolded, verbally abused and then physically assaulted. He was hit several times on the face and head. Most of the blows and kicks were directed at his body and legs. His legs were hit with a hard object. He fell over several times as a result of the blows. At one instance when his blindfold slipped, he identified one of the assailants as the second Defendant in person - Tan Sri Rahim Noor. The plaintiff also said that after the episode of physical assault, some urine-smelling like liquid was poured into his mouth while his mouth was forced open. Throughout the ordeal he was forced to remain naked. His penis was hit and an object pushed against his anus. He was made to stand in front of an air-conditioner and drenched with water - this treatment was done for almost an hour. The ordeal finally ended at about 4am. According to the plaintiff when the blindfold was removed he saw the first Defendant and other Special Branch officers in plainclothes. The first Defendant warned him not to make a police report regarding what had happened. The plaintiff also asked for medical treatment from the detaining officer but access to a doctor was only provided three days later on 29 September 1998.

[34] The first defendant's version is a complete denial. He says the plaintiff was never stripped or beaten or ill-treated in any manner. He says that all that happened in what is called the "bilik dokumentasi" on the 1st floor was that the plaintiff was kept in a room handcuffed whilst the documents and items seized from his home were checked and a list made up. This took about one and a half hours. The plaintiff was then photographed by Sgt Samat Abd Hamid (SD4) at 4am on 26 September 1998 and then kept in the same room as he was earlier kept until handed over to Bukit Aman officers at 2pm on 26 September 1998. The first Defendant also says that Tan Sri Rahim Noor was never in the bilik dokumentasi.

[35] In my judgment, based on the evidence before the court, on a balance of probabilities, the plaintiff's case is more credible and ought to be accepted. I so hold for the following reasons.

[36] First, the medical evidence shows that an assault took place. A careful scrutiny of Dr. Vasantha Ponniah's (SD7's) medical report shows that the plaintiff had complained of pain in his left foot, left thigh, left leg and lower back. He also complained of pain over his pelvis and his right eye. Dr. Vasantha has noted that the plaintiff had limited flexion of the spine due to pain. Similarly she noted bruises over both wrists of the plaintiff; a bruise over the postero-lateral aspect of the left thigh in the mid-thigh area, and another bruise on the postero-lateral aspect of the left leg. In her evidence in court, Dr. Vasantha confirms that with the bruises there was swelling. It is to be noted that Dr. Vasantha only saw the plaintiff three days after he was assaulted.

[37] Second, the plaintiff from the time he was brought to the IPK, Kuala Lumpur and until he was handed over to Bukit Aman officers at 2pm on 26 September 1998, was never placed in a lock-up as required by the Lockup Rules 1953. All prisoners have to be placed in a lock-up after arrest. This is mandatory after 6.30pm (see r. 20 of the Lockup Rules). The Rules provide that prisoners could not be moved out of the lockup between 6.30pm and 6.30am which must mean that no interrogation could be conducted during these hours. All movements of prisoners in and out of lockups are to be recorded. All this is for the protection of prisoners and also to prevent accusations against the police. The first Defendant says that his only instruction was to arrest the plaintiff and take him to the IPK. He had no instructions to conduct any investigation and the only instruction was to prepare all documentations to hand over the plaintiff to Bukit Aman.

[38] Third, there was no explanation given by the defence as to why the plaintiff was not taken to Bukit Aman immediately after the arrest.

[39] Fourth, according to the first defendant's version of events, there is a substantial block of two and half hours of unexplained time where nothing happened on the first floor of the IPK, that is to say, between 1.20am and 4am. Hence the first defendant's version of events is highly questionable. After finishing the senarai rampasan at about 1.30am, there was no reason why the photographs of the plaintiff were not taken immediately and the plaintiff placed in a lock-up. After all, Sgt Samat (SD4), the photographer, was on duty all the time and available. Even the story of the time being occupied preparing the senarai rampasan has material and serious contradictions. According to the first defendant, he says that shortly after the plaintiff was taken to the Bilik Dokumentasi, Sgt Samat (SD4), Cpl Teoh and Cpl Sharif arrived on his instruction to help in the documentation and inspection of the documents seized from the plaintiff's house. He says he also instructed Sgt Samat to take photographs. However, Sgt Samat's evidence is completely different. He says that he received a call from the first Defendant at 3.45am to take photographs of the plaintiff who was then in the Bilik Dokumentasi. As I have pointed out above, Sgt Samat's first witness statement (P7) states the time of this instruction as 4am. Neither of these witness statements says anything about him being instructed to go to the Bilik Dokumentasi about midnight to help with the documentation, as claimed by the first defendant.

[40] Then there is the evidence of D/Cpl Abdul Hamid bin Jaffar (SD3). He says categorically that only he and Insp. Wong (who was never called as a witness) helped the first Defendant to prepare the senarai rampasan. He makes no mention of Teoh or Sharif. He explains the process in his evidence and says that it took about 1-2 hours. Cpl Yunus (SD2) also says that the senarai rampasan was compiled by the first defendant, Insp. Wong and Hamid (SD3). He explains that he and L/Cpl Johari (who was never called as a witness) kept guard on the plaintiff, while the first defendant, Wong and Hamid (SD3) prepared the list.

[41] I am of the opinion that the glaring discrepancy between the first defendant's evidence and the evidence of the others shows that the versions are being concocted to present some kind of a chronology of events to cover the time between midnight and 4am. It is a reasonable inference that none of these versions and, in particular, that of the first Defendant reflects the truth. And all the more so when there is this gap in time between at least 1.20am and 4am which remains unexplained. It is fair to ask: What were these police officers really doing with the plaintiff in the early hours of the morning when he should have been placed in the lock-up? Their conduct of not keeping the plaintiff in the lock-up and their contradictory answers invite the inference that they were covering up some unlawful act in relation to the plaintiff.

[42] Fifth, according to the investigating officer, SAC Hadi Ho (SD11), Tan Sri Rahim Noor (the IGP) was actually present in the IPK, Kula Lumpur building between 12 midnight (25 September) and 3am (26 September) and the time coincides with the time that the plaintiff allegedly was assaulted by the first defendant, Tan Sri Rahim Noor and others. However, according to SAC Hadi Ho (SD11) he was told by Tan Sri Rahim Noor that he was at the IPK for a meeting with the Director of Special Branch, Bukit Aman and the Deputy Director to receive a briefing from the Head of Special Branch, Kuala Lumpur. According to SAC Hadi Ho, Tan Sri Rahim Noor had said he had received information from the Special Branch KL that members of a group of silat exponents planned to gather in various parts of KL on 26 September 1998. SAC Hadi Ho also said that the Chief Police Officer of Kuala Lumpur, Dato' Kamaruddin, was not only not present at the meeting, he was in fact not informed of the meeting at all. I make a finding of fact that Tan Sri Rahim Noor was present at the IPK between 12 midnight and 3am. but I am unable to accept that Tan Sri Rahim Noor was at the IPK for the reason that he had given. I am unable to accept for the following reasons:

a. Since the meeting involved the IGP, the Director of Special Branch, Bukit Aman and his Deputy Director, why should the meeting be held at the IPK, KL, when it is more appropriate protocol-wise and convenient to hold it at Bukit Aman?
b. Why was the meeting held at a very unusual time ie, between 12 midnight and 3am?
c. Why must the meeting take so long ie, almost three hours just to discuss only a single agenda, that is, pertaining to what the silat exponents intended to do?
d. Since the meeting involved the IGP and top officers from Bukit Aman, why was the CPO of Kuala Lumpur not present at, or not informed of, the meeting?
e. Considering that there was a very serious allegation made against Tan Sri Rahim Noor by the plaintiff and considering that he was present at the IPK at the material time, why wasn't Tan Sri Rahim Noor called by the defence to testify to rebut the allegation, if indeed the allegation is false?

[43] Sixth, there is also a major and material contradiction between the first defendant's evidence in court and what he told SAC11 Hadi Ho (SD11). As stated above, the first defendant's evidence is that his only instruction (received from SAC II Salamuddin, Head of Special Branch, IPK, Kuala Lumpur) was to arrest the plaintiff and take him to the IPK. He had no instruction to conduct any investigation and the only instruction was to prepare all documentations to handover the plaintiff to Bukit Aman. On the other hand, SAC II Hadi Ho (SD11), when asked in cross-examination if he had asked the first Defendant why the plaintiff was not put in a lock-up, he said that the first Defendant told him that he had to prepare documentations and also that he had to question the plaintiff on various matters pertaining to national security. He said the first Defendant told him that he had questioned the plaintiff from time to time until 4am. When asked whether he had asked to see the statements recorded by the first Defendant in respect of this purported interrogation, he answered, "Dalam masa itu tidak relevan kepada penyiasatan saya". He also agreed that no interrogation should be done after 6pm in view of the provisions of the Lock-Up Rules. When asked if he had asked the first Defendant why he had not postponed the interrogation of the plaintiff until the next morning, SD11 answered that he did pose the question. SD11 said the answer of the first Defendant was that he needed to question the plaintiff on urgent matters regarding the reformasi movement based on information received by the Special Branch and also to ask the plaintiff to explain documents seized from his home. When it was put to SD11 that the investigation of the plaintiff was under Bukit Aman and not under the first defendant, SD11's response was that he was not sure of the arrangement. I accept the plaintiff counsel's submission that the above contradiction again shows that the evidence of the first Defendant lacked credibility and seemed to be shifting substantially depending on the circumstances.

[44] Seventh, there is the pertinent observation that the Kuala Lumpur Police Department (meaning SD11 and his immediate superior, SAC 11, Mat Zain Ibrahim) and the DPP's (Deputy Public Prosecutor's) office, having rejected the plaintiff's complaint in his police report, were, however, not willing to prosecute the plaintiff for lodging a 'false' report against the IGP and the first Defendant (and the others). Initially, SD11 and his superior (SAC 11 Mat Zain) recommended to the DPP to NFA (meaning to take 'No Further Action') on the plaintiff's police report and, instead, to have the plaintiff charged under s. 182 of the Penal Code for lodging a false police report against the IGP and the first defendant. According to SD11, the file was referred to the DPP's office on 29 July 1999. Although the DPP's office was very slow and did not respond even after eight months, strangely, there was no follow up by the police. Not a single reminder was sent to the DPP's office. The file finally returned some nine months later on 27 April 2000 from the DPP's office to SD11's superior SAC II Mat Zain Ibrahim with a decision to "NFA" the case. In fact the respond of the DPP was:

[45] It is significant and disquieting to observe that the DPP (Puan Zauyah binti Loth Khan), having taken so much time (ie, nine months) over the matter, yet in her minutes did not refer at all to the recommendation of SD11 (and endorsed by his superior, SAC 11 Mat Zain) that the plaintiff be prosecuted for making a false police report. That recommendation was simply ignored. Also equally disturbing is the observation that despite the plaintiff's serious allegation against the IGP and the first Defendant coupled with the fact that the DPP had ignored SD11's recommendation, yet neither SD11 nor his superior, SAC Mat Zain, considered it fit to refer the IP (Investigation Papers) back to the DPP's office for a direction. Now, in this regard there is no suggestion by the Senior Federal Counsel that there was an oversight on the part of the DPP's office; and Puan Zauyah was not called to give an explanation for the long delay in responding and the omission to direct. The submission of the Senior Federal Counsel is merely - and I think the learned Senior Federal Counsel, with respect, appears to have missed the point - that it is the sole discretion of the Public Prosecutor whether or not to charge the plaintiff for lodging a false report. Hence, here, several disturbing but pertinent questions arise:

(a) Why did it take nine months for the DPP to respond to SD11's recommendations?
(b) Why didn't SD11 or his superior (SAC Mat Zain) send any reminder to the DPP's office when the DPP's office took such a long time to respond?
(c) Why did the DPP's office purposely ignore the recommendation of the police that the plaintiff be charged for making a false report against the IGP?
(d) Why were SD11 and SAC Mat Zain not serious in pursuing their recommendation with the DPP's office when a very serious and scandalous accusation had been formally made against their IGP and, instead, were quick to have the investigation file closed?

[46] Based on the above facts, observations and queries, I think it is fair to draw an inference that both the DPP's office, SAC Hadi Ho and SAC Mat Zain well knew that there was a lot of truth in the plaintiff's police report against Tan Sri Rahim Noor and the 1st Defendant (and the others). I regret to remark here that I am also making an inference that the investigation carried out by SAC Hadi Ho in respect of the plaintiff's police report was nothing but a mere sham.

Conclusion That Assault Did Take Place As Alleged By Plaintiff

[47] It is my finding upon an evaluation of the evidence that the plaintiff was unshaken as a witness of truth in the witness stand. He stood firmly by his story which he had detailed in the document marked as P2 and in his police report on 13 March 1999. Senior Federal Counsel in his submission attempts to raise contradictions between the plaintiff's police report and his evidence in court. It is my finding that a careful scrutiny of the report and the evidence in court will show that the contradictions, if at all there are any, are trivial in nature and that the versions in P2 and in the plaintiff's police report do not differ substantially from the version given by the plaintiff in court.

[48] In the present case it is my conclusion that an analysis of the evidence as explained above including the medical evidence, the credibility of the evidence of the plaintiff, the events that happened on the first floor of the IPK on 25 and 26 September 1998, the unexplained gap of two and a half hours, the contradictions between the first defendant's evidence and the evidence of the other defence witnesses, the fact that the plaintiff was not put in a lock-up without any reasonable explanation and in breach of the Lockup Rules, all taken together show that the plaintiff has proven on a balance of probabilities that he was assaulted in the manner he has described.

Whether The Plaintiff Was Denied Access To A Lawyer

[49] It is not disputed that the plaintiff did not meet with any lawyer throughout the 57 days of his detention. In his evidence he says that he was not given the right of access to counsel throughout his detention. Not only that: prior to his first family visit on 21 September 1998 (even this was 27 days after his arrest!), he was warned not to file any habeas corpus application. He maintains that he did ask his interrogating officer at Bukit Aman during the first week of interrogation whether he could see a lawyer but he received a negative answer. Needless to stress here that access to a lawyer is a constitutional right, as provided for under art. 5(3) of the Federal Constitution.

[50] Further, the plaintiff has asserted that his interrogation ended after 19 days. Even going by the defence position that access to counsel would only be granted at the completion of the investigation (which in my view should not have been the case), then, why was access to counsel not granted after 19 days? Such a refusal of access to counsel is clearly an unreasonable conduct and shows mala fide on the part of the police.

The Declaration

[51] For the reasons explained above, I grant the declaration set out in para. 14(a) of the statement of claim.

General Damages For Wrongful Arrest And Detention For 57 Days

[52] Encik Sivarasa, the learned counsel for the plaintiff, after referring to several case authorities, submits that the appropriate amount for an unlawful detention of 24 hours in Malaysia would be in the region of RM25,000 to RM30,000. He concedes that an award for a period of 57 days should not be a simple arithmetic calculation but would also have to be adjusted. The learned counsel submits that a simple mathematical approach gives 57 multiplies by (say) RM25,000 which amounts to RM1,425,000. He, however, submits that an appropriate amount would be about half of that sum, that is to say, RM700,000. In my judgment this is a reasonable proposition.

[53] Encik Sivarasa further submits that there are a number of significant aggravating factors in the treatment of the plaintiff during the detention as detailed above in this judgment. The aggravating factors are the breach of the plaintiff's constitutional and fundamental rights, including right of access to counsel; the denial of access to family members within a reasonable time and frequency of the visits; the length of the period of solitary detention; the interrogation for 19 days on matters not related to internal security; the repeated assault of being handcuffed and blindfolded each time the plaintiff was moved from his cell, which is a distressing experience; and the injury to the plaintiff's reputation as a consequence of the arrest and detention. The learned counsel submits that the total amount of general damages for false imprisonment taking into account such aggravating factors should be increased to RM1,500,000. I am in agreement that there are aggravating factors and that the amount of RM700,000 should be increased taking into account these aggravating factors. But I think increasing the amount of RM700,000 to RM1,500,000 is rather too excessive. In my judgment, taking into account the aggravating factors, the award for false imprisonment should be increased from RM700,000 to RM1 million.

General Damages For The Assault And Ill-treatment

[54] In my judgment, on the evidence detailed above on the assault, taking into account the aggravating factors, an appropriate amount for the vile treatment meted out to the plaintiff, physical injuries suffered, the pain and suffering and the mental anguish and humiliation, the delay in giving medical treatment etc, the plaintiff should be awarded the sum of RM500,000.

Exemplary Damages

[55] In my judgment the circumstances of this case are such that it is appropriate for an award of exemplary damages. In the landmark case of Rookes v. Barnard [1964] AC 1129, Lord Devlin stated that one of the categories of cases in which an award of exemplary damages may be made is a case that involves oppressive, arbitrary or unconstitutional action by the servants of the Government.

[56] In the present case, the behavior of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, and prolonged physical and mental ill-treatment. The Special Branch Department of the Police Force must not only be neutral but must also be seen to be neutral and non partisan. It must be above politics. The practice of torture of any kind is to be detested. The despicable conduct of the then Inspector General of Police, Tan Sri Rahim Noor, was shameful and a disgrace. He had shown an extremely bad example to the thousands of men under his charge. The award of exemplary damages is necessary to show the abhorrence of the Court of the gross abuse of an awesome power under the Internal Security Act. Any gross abuse of this power (which clearly is the case here), therefore, must be visited with an award of exemplary damages to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely. The practice of torturing detainees by the Police Force can never and should never be condoned by the courts. The court must show its utmost disapproval in no uncertain terms.

[57] Finally, access to a lawyer is one of the fundamental safeguards that a person has under the Federal Constitution that ensures he is not kept in incommunicado detention and abused. Access to a lawyer ensures that the treatment of the detainee has some transparency and that he is accorded due process as stipulated by the Constitution and the law. Denial of access to counsel allows detaining authorities that act mala fide to do as they wish with a detainee including placing obstacles to legal recourse. In many instances when access to counsel is finally accorded to the detainee, it is usually too late for him to take meaningful legal recourse as the evidence has disappeared or, more importantly, the mischief or injury that the access was supposed to prevent ie, physical and mental ill-treatment etc. has already happened.

[58] In my judgment, in the circumstances of the present case, an award of RM1 million as exemplary damages, is appropriate.

[59] I am awarding interest at the rate of 8 percent per annum on all the above sums to run from the date of judgment until realization; and I order that all costs of these proceedings be paid by the defendants to the plaintiff.

Wednesday, March 24, 2010

Employer is short of workers...he has made efforts and he cannot get local workers, and then he goes to the government permission for the Employer to get foreign workers.Government investigates, and then gives permission.

Employer proceeds to get migrant workers. Usually, by way of advertisement or agents in the country of origin, the employer identify and pick suitable workers. Employer makes an offer - i.e. the term of employment (usually it will be for 3 years or more), the salary, etc. If the worker accept, then the employer and the worker/s sign an Employment Agreement/Contract. [In some countries of origin, the workers will sign in front of a Government Official, and the employer may be required to sign in the presence of an embassy official in Malaysia).

After this agreement is signed, the employer informs the Malaysian government - and a letter of approval issued together with directions as to work visa/permit applications, etc

Worker comes to Malaysia - met by the employer and proceeds to work.

This was the way things were done in the past - Direct Employment of Migrant Worker. Employer with jobs employs workers..

Then the government of Malaysia came up with the 'Outsourcing Companies' [Labour Suppliers??] - These are usually small companies, usually with no jobs or assets or money in the bank, and they were given the right to bring in migrant workers.

The problem is that the agreement is now between these Outsourcing Companies and the Workers. The Outsourcing Companies then supply the 'real employers' with the workers - but there is no employment agreement between the employers and the workers. Some of these employers pay the workers directly their wages, etc... some pay the outsourcing companies who then pay the workers.

If there is a grievance against the employer, when the workers take the matter to the Labour Department - the question is 'Who is the Employer?' - they say bring the Outsourcing company to court - but alas, these '2-dollar companies'' have no asset and no capacity - Their claim is none payment of overtime allowance ....wrongful dismissal... Can this matter be settled between the worker and the Outsourcing Company? Their complain is about injury at the workplace - can the Outsourcing Company be made liable for this? If the worker succeeds, and the claim is large - Outsourcing company can easily wind-up and disappear. No plantation, machinery, factory lot that could be sold to recover something for oppressed workers...

Some outsourcing companies also keep the worker in one place for a couple of months, and then move him/her to another employer and so on. Hence, it prevents worker solidarity...and certainly makes it a problem with claiming of rights for in January, you were working in Temerloh ...and then you are in Johor Baru in April...Rolling stone gather no moss - now, it is moving workers less problems...but workers are being oppressed.

Many employers are also not happy with this situations - They want that third party, the 'Outsourcing Company' removed from the picture. They want a direct employer-employee relationship with the workers. Malaysian labour laws also have not been amended to incorporate the strange entity - the 'Outsourcing Company' - will they be made liable for the Occupational safety and health requirements of the workplace, minimum standards of accommodation... What happens in a wrongful dismissal case - a reinstatement order without loss of benefits - how can the 'Outsourcing Company' even comply with this? When asked to present salary slips, start work end work records, etc in a Labour Case - can the 'Outsourcing Company' do this? Who is responsible for the sexual harassment and other wrong actions of the manager of the factory they worked at? The 'Outsourcing Company'?

Malaysia should just get rid of the 300 over Outsourcing Companies ....

JOHOR BARU: The Government should liberalise the recruitment of foreign workers by allowing small-medium enterprises and industries to hire them directly.

Malaysian Indian Business Association (MIBA) president P. Sivakumar said the problem involving the influx of foreign workers in the country started when outsourcing companies were given a free hand to import workers.

“Many of them abused the system and brought in thousands of workers. When there was no work, they left the workers stranded at airports and plantations.

“Obviously, the workers, who had paid huge amounts of money to come here, then went into hiding and worked illegally,” he said in an interview.

Sivakumar expressed confidence that the Government would be able to overcome the illegal immigrant problem if businesses requiring foreign workers were allowed to deal directly with embassies and high commissions.

Sivakumar said many businesses, especially restaurants, laundry shops, goldsmiths, barbers, hair salons and mini markets, were suffering as they had insufficient workers.

Malaysian government is complaining that there are so many foreigners in Malaysia's prisons - and that they have spend so much money on them...but what really is the intention of the Home Minister and the Malaysian Government. Is it to propagate and/or enhance the prejudicial perception that Migrants/Foreigners are bad...'criminals'...the reason for crimes,...What is it you are trying to do? Why no mention about the number of Malaysians in prison, and the cost incurred? How many tried and convicted persons in Malaysian prisons are Malaysians...and how many are foreigners? How many of these foreigners have been tried and convicted for crimes other than offences against the immigration act (lapse visa, no passport, etc...)?

Hishammuddin [Home Minister Datuk Seri Hishammuddin Hussein] said that in 2009, there were 81,396 foreigners in Malaysian prisons and a staggering RM171.08mil was spent on them, adding that between 2006 and last year, 408,979 illegal immigrants were detained at 13 immigration depots.

Question that must be asked is:-
Who are these persons who are in prison, and why are they in prison?

How many are convicted persons? (i.e. those that have been tried and found guilty by the court, OR those who have pleaded guilty in court - and are in prison because they are serving out the court sentences of imprisonment.)

Then, with regard to those convicted and sentenced, what are their offences? (i.e. how many for murder, robbery, theft, etc....and how many for some immigration offence like overstaying, visa violations, not having documents, etc...)

How many are really REMAND PRISONERS? These are persons being detained whilst they wait for the trials to start...or be over. These are innocent persons because we believe in the presumption of innocence until proven guilty.

Many of the poor, and also migrant workers and other foreigners sometime cannot afford to pay the bail - which can be high sometimes - RM2,000, RM3,000, RM10,000, RM50,000... it all depends on the Magistrate and/or judges - and when it come to non-Malaysians, it is sometimes even higher. Foreigners and migrants also have the difficulty getting sureties, and courts normally insist that they be Malaysians. Would you be willing to put your money in court and stand as surety for a foreigner - knowing that if he runs away or not turn up in court the next day, you will lose all (or most) of your money. Surety guarantees the attendance of the accused at the next and subsequent court dates. It is very hard for many foreigners to get sureties...

Next problem that faces the foreigners is that their entry and stay in Malaysia is governed by visas. A social visit visa may be for 90 days(or less), and many of these visas expire (or are going to expire) by the time the foreigners is brought to court and charged, and this makes it more 'difficult' for courts to grant bail.

I say 'more difficult' because in Malaysia, all persons are entitled to be treated equally, and a person charged with a bailable offence is entitled to be bailed out. [Only limited offences like murder, drug trafficking, etc ... do not allow for bail - but even here, in certain cases bail would be granted].

What happens if the social visit visa, work visa, etc has expired (or is about to expire)? Well, in granting bail, the court can direct the Immigration Department to issue the foreigner with a 'Special Pass' - that will allow him/her to remain legally in Malaysia. Normally, when it comes to a foreigner, the courts as a condition of granting bail, will also require the passport to be deposited in court as security. Hence, even taking the passport to the Immigration to get a Special Pass is tricky. Court may require a personal undertaking from the lawyer to take the passport from court to the Immigration Department, to get the 'Special Pass' and thereafter return the Passport back to Court. Most lawyers may not be willing to do so.

There is another problem - as the Immigration Special Pass (costing RM100) is a 1-month pass usually, and the process have to be repeated every month. Delay in trials starting and ending in Malaysia makes it an extremely time and cost consuming exercise - and maybe only the rich foreigner an afford this.

Another problem is that Passport can expire - and how does one renew it. Possible if renewal can be done in some embassies.

What happens when passports are not in the possession with the detained 'suspect' - as in Malaysia, against the law, employers and 3rd parties hold on to migrant's passports. (and Malaysian government seems OK with this...) .. passports get 'lost' when someone gets arrested, and employers/agents so easily deny that they had(or have) the foreigner's passports. Should special passes be given to the accussed foreigner? If it is a bailable offence, I say it must.

The problem why there are co many foreigners in Malaysia's prisons is because of Malaysia's UMNO-led BN government's failures, and the Home Minister should not be complaining about this...I believe that most of them are remand prisoners, and if they had been 'richer' Malaysians, they would have been out on bail - and hence saving the government money needed to keep them in prison.

QUESTIONS FOR THE HOME MINISTER & Malaysian Goverment (which maybe some MP could also ask - or the government could just give us all the answer?)

* How many foreigners in Malaysian prisons are 'convicted and sentenced' prisoners? How many are remand prisoners? How many of the remand prisoners are charged with offences that are bailable (that they could be released on bail)? For the foreigners, how many of them are in a situation where their visas are expired? How many have passports that have expired? How many do not have a copy of their own passports?

** How many Malaysians in Malaysian prisons are 'convicted and sentenced' prisoners? How many are remand prisoners? How many of the remand prisoners are charged with offences that are bailable (that they could be released on bail)?

*** For the foreigners who have been sentenced, and serving prison sentences, how many are with regard to immigration law offences?

***What is the per day per prisoner cost? Malaysia's Home Minister said that RM171.08mil was spent on 81,396 foreigners in Malaysian prisons in 2006-2009(3 years), how many actual prison days are we talking about, and what percentage of this sentenced prison time, and what percentage was really remand prison time? How much was spent on Malaysian prisoners for the same period?

The giving of information without full details and particulars leads to people making wrong conclusions, i.e. that migrants are 'bad people' and commit crimes...that most of the crimes in Malaysia are committed by foreigners, etc.. This is called tarnishing the image of foreigners - and it is wrong, and one reason for doing this is to continue to propagate this prejudice against the poor foreign migrant workers....

In the past, there was a perception that Malays were lazy and stupid, and there was nothing 'straight' about a Chinese except his hair - i.e. they are untrustworthy. The propagation of such prejudice based on ethnicity (religion, citizenship, ..) is so wrong. Is the Malaysian Home Minister trying to propagate a negative image of migrants in Malaysia...of foreigners in Malaysia? I wonder....

Hishammuddin [Home Minister Datuk Seri Hishammuddin Hussein] said that in 2009, there were 81,396 foreigners in Malaysian prisons and a staggering RM171.08mil was spent on them, adding that between 2006 and last year, 408,979 illegal immigrants were detained at 13 immigration depots.

The Home Minister 'smartly' reveals not the number of arrests made - but the number of detentions made. He is reported to have said, "...47,310 detentions were made..." in 2009."This involved 26,545 cases of illegal entry; 8,655 cases of overstaying after the visit pass or permit had lapsed; 6,836 cases of flouting pass or permit conditions or having fake permits; and the rest were for other offences," he said.

Then, he gives a breakdown for the reasons of detentions...26,545 cases of illegal entry8,655 cases of overstaying after the visit pass or permit had lapsed6,836 cases of flouting pass or permit conditions or having fake permitsThat brings the total to 42,036 persons - and what are the possible other offences that caused the other 5,274 to be detained. Were they detained because they could not produce their original passport and pass/permits because the employer wrongly was holding on to them? I believe that this could have been the reason for the arrest and detention. -How many migrant workers were wrongly arrested? detained? Be truthful..reveal all Mr Home Minister

When they talk about cost, I also wonder whether this cost is caused by other reasons like corruption, giving out over-priced tenders to certain parties, ... Looking at the Al-Jazeera video on the condition of detention centers, especially the food that they get, one wonders whether so much money is spent on detainees/prisoners.

Maybe, Malaysia should be looking at how money can be saved by cutting down unnecessary expenses. Would it not be cheaper if food is prepared with the help of the detainees/prisoners? Would it not be cheaper if laundry is done by prisoners/detainees? Maybe, instead of detaining them in prisons, while they await their trial, they should be released on Bail with proper papers to stay/work in this country. Maybe, the government will increase the number of courts & judges, and expedite all cases involving foreigners (and all other remand prisoners) - maybe it should commence within 2 weeks, and should be completed not later than 3 months from the date of being charged?

A lot of money get wasted because of the policies, priorities of the UMNO-led government of Malaysia. A few years ago, it was revealed that we have only 2.4 judges to a million people, and it was a far cry from what we needed. If you do not have enough court and judges, of course there will be a lot of 'prisoners' languishing in court waiting for their trial to start and finish - and sometimes, even the 'innocent' may plead guilty so that he can just serve his sentence and get out of jail. A grave injustice brought about by the UMNO-led BN government's failings.

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